| Luu v Paskowski |
| 2008 NY Slip Op 10135 [57 AD3d 856] |
| December 23, 2008 |
| Appellate Division, Second Department |
| Lien Luu et al., Appellants, v Elizabeth Paskowski et al.,Respondents, et al., Defendant. |
—[*1] Peltz & Walker, New York, N.Y. (Bhalinder L. Rikhye of counsel), for respondents ElizabethPaskowski and Sharon Quayle.
In an action to recover damages for medical malpractice and lack of informed consent, etc., theplaintiffs appeal from an order of the Supreme Court, Rockland County (Garvey, J.), dated June 8,2007, which granted the motion of the defendants Elizabeth Paskowski and Sharon Quayle forsummary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
In a medical malpractice action, a plaintiff must prove that there was a deviation or a departurefrom good and accepted practice and that such departure or deviation was a proximate cause of injuryor damage (see Myers v Ferrara, 56AD3d 78 [2008]). On a motion for summary judgment dismissing the complaint, a defendantphysician has the burden of establishing the absence of any departure from good and accepted practice,or, if there was a departure, that the plaintiff was not injured thereby (see Rebozo v Wilen, 41 AD3d 457,458 [2007]; Thompson v Orner, 36AD3d 791, 791-792 [2007]; Taylor vNyack Hosp., 18 AD3d 537, 538 [2005]; see generally Alvarez v Prospect Hosp.,68 NY2d 320, 324 [1986]). In opposition, a plaintiff must submit the affidavit of a physicianattesting to a departure from good and accepted practice, and stating the physician's opinion that thealleged departure was a competent producing cause of the plaintiff's injuries (see Rebozo v Wilen,41 AD3d at 458; Thompson v Orner, 36 AD3d at 792; Taylor v Nyack Hosp.,18 AD3d at 538; Domaradzki v Glen Cove Ob/Gyn Assoc., 242 AD2d 282 [1997]). Aplaintiff cannot rebut a defendant physician's showing that he or she was not negligent and defeat amotion for summary judgment by [*2]offering an expert's affidavitcontaining general allegations of medical malpractice which are conclusory in nature and unsupportedby competent evidence tending to establish the elements of medical malpractice (see Alvarez vProspect Hosp., 68 NY2d at 324-325; Rebozo v Wilen, 41 AD3d at 458-459;Thompson v Orner, 36 AD3d at 792; Furey v Kraft, 27 AD3d 416, 418 [2006]; Taylor v Nyack Hosp.,18 AD3d at 538).
Here, in support of their motion, the defendant doctors Elizabeth Paskowski and Sharon Quayle(hereinafter the defendants) submitted their deposition testimony, their office records, the records ofNyack Hospital, and the affidavit of Robert Ward, a board-certified surgeon. These submissionsestablished that a small bowel obstruction and a subsequently-discovered pelvic hematoma sustainedby the plaintiff Lien Luu (hereinafter the plaintiff) were not caused by any departure from good andaccepted medical practice by the defendants. Thus, the defendants satisfied their initial burden.
In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs' expert Benjamin Zola,a board certified internist, submitted an affidavit indicating that the defendants failed to detect a greatamount of post-operative blood loss, as well as the plaintiff's small bowel obstruction and pelvichematoma. However, Zola did not refer to any part of the hospital records, and did not state when theblood loss occurred or how it caused the small bowel obstruction and hematoma. Zola made noreference to any of the hospital records in his affidavit, and did not state that he had reviewed thepleadings and depositions. Zola's affidavit was conclusory and lacked a foundation (see Thompsonv Orner, 36 AD3d at 792; Furey v Kraft, 27 AD3d at 418). We note that the defendantQuayle had no role in either the pre-operative or post-operative care of the plaintiff.
The defendants also established their prima facie entitlement to summary judgment dismissing thecause of action to recover damages for lack of informed consent insofar as asserted against them byoffering the consent form that the plaintiff signed, in which she agreed to undergo a hysterectomy, andthe deposition testimony of the defendant Paskowski that she explained the potential benefits and risksof the procedure to the plaintiff, and discussed an alternative form of treatment (see generally Spanov Bertocci, 299 AD2d 335 [2002]). In opposition, the plaintiffs failed to raise a triable issue offact, submitting only a two-page excerpt of the plaintiff's deposition testimony, in which she testified thatshe did not understand what the term "hysterectomy" meant. This failed to rebut Paskowski's depositiontestimony that she discussed the risks and benefits of both a hysterectomy and other treatment with theplaintiff. Zola's affidavit discussed the issue of informed consent in the most general terms, with noreference to the record and no specific, detailed allegations. Moreover, because the plaintiffs failed toraise a triable issue of fact with respect to proximate cause, they cannot sustain a cause of actionpredicated on lack of informed consent (see Thompson v Orner, 36 AD3d at 792-793).
The plaintiffs' remaining contentions are without merit or improperly raised for the first time onappeal. Skelos, J.P., Ritter, Carni and Dickerson, JJ., concur.